from the whoa dept

Kal Raustiala and Chris Sprigman, continuing their excellent blogging (soon to be in book form) about markets succeeding in absence of intellectual property, have taken a look at the question of whether or not different brands of marijuana can be covered by trademark. With the increasing legality of medical marijuana, it's not uncommon for different strands to get their own brands. However, as the two note, plant varieties cannot be trademarked, but you can build a brand on top of one. So, as an example, Fuji apples cannot be trademarked, because that's a variety -- but Rainier Brand Fuji Apples is a trademark.

Of course, if you were dealing with a pot brand rather than a variety, could you trademark it? Well, you don't need to register a trademark to get protections. There are common law trademarks which get you pretty far without registering -- though it doesn't appear that anyone's tested such a pot trademark in court. As for a registered trademark, the USPTO apparently created a medical marijuana category for trademarks... very, very briefly. And then someone apparently realized this might be a political nightmare and that category suddenly disappeared.

Amusingly, the pair note that someone did try to trademark "Marijuana" for a drink, but it was denied with a bit of moralizing from the PTO: "the term MARIJUANA refers to an illicit drug that is associated with illegal behavior and adverse health consequences. The proposed mark is therefore immoral or scandalous and thus unregistrable." Personally, I think it's kind of awesome to have a trademark rejected for being "scandalous." I'm impressed.

Either way, the end result is basically that there doesn't appear to be much in the way of legal protections for the various brands of pot that are found in medical marijuana dispensaries. While Raustiala and Sprigman don't get into it, it would seem like this creates another "pure" market to study, to see what happens in a brand-based market without trademark protections. Is copying of brand names common? Do less potent forms of pot try to draft off of more famous brands? Or does the market have a way of working itself out? It seems like a worthwhile market to study for someone enterprising.